Feminist Legal Studies and the Subject(s) of Men: Questions of Text, Terrain and Context in the Politics of Family Law and Gender

Within feminist legal scholarship in the field of family law, a critical engagement with the gender of men approached via recourse to the concept of masculinity/ies is a now well-established theme.[999] In recent years, in particular, it has become commonplace within literary and hermeneutic projects informed by the ‘post­modern frame’[1000] to find discussion of how law has been involved in the constructing, embodying or reproduction of various ideas about men, women and (hetero­normative) ‘family life’ approached via reference to the concept of masculinity. This work has sought to unpack, reveal or, more precisely, deconstruct the presence of the ‘hegemonic masculine’ in law (see below) as part of developing an under­standing of the hidden gender[1001] of (family) law. A recurring assumption in this work has been that there is a political, analytic and policy gain to be made for feminism by ‘taking masculinity seriously’.[1002] It is an assumption certain aspects of which I wish to question. What follows presents, in short, a re-reading of the male subject of feminist scholarship within the field of family law.[1003] I wish to explore the limitations, ambiguities and confusions which, I will suggest, have come to surround the concept in this area of legal study. I will argue that there are pressing reasons to reconsider what an engagement with masculinity – in particular one approached via the analysis of legal texts – can bring to feminist legal scholarship at the present political moment.

Family law, as a sub-field of legal studies, has in many respects been at the forefront of the study of masculinity within legal scholarship; it is family law, I will argue, which has come to exemplify and illustrate some of the conceptual and political limitations of masculinity for feminism more generally, resulting from a number of political and theoretical developments over the past decade. A rethinking of the male (gendered) subject in family law is a project linked to – indeed, I want to suggest, it is inseparable from – a growing debate taking place

about the future direction and politics of feminist scholarship within legal studies. It has been suggested that ‘feminist legal theorists are in disarray’;[1004] a situation engendered significantly (although by no means exclusively) by the twin impacts of neo-liberal market imperatives on the academy and the impact of post­modernism on feminist legal theory. This debate is embracing concerns about the relation between ‘high theory’ and (feminist) practice, questions of audience and accessibility; of the relationship of men to legal feminism;[1005] and, my concern here, about what it means to speak at the present moment, in the context of a growing debate centred around what has been termed the new ‘male victimhood’ in the field of family justice, of there being an interconnection between men, masculinity and family law.